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Poster: cortex Date: Oct 21, 2003 8:38am
Forum: etree Subject: clearing the mis-information on taper rights

after consulting with a retained lawyer about the possible rights a "taper" has of a given recording he/she made, this was the response with regards to the document at http://www.copyright.gov/circs/circ56.html
(sections copied below)



What Is a Sound Recording?
The copyright code of the United States (title 17 of the U.S. Code) provides for copyright protection in sound recordings. Sound recordings are defined in the law as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work." Common examples include recordings of music, drama, or lectures.
Generally, copyright protection extends to two elements in a sound recording: (1) the contribution of the performer(s) whose performance is captured and (2) the contribution of the person or persons responsible for capturing and processing the sounds to make the final recording.
Publication as defined by the 1976 Copyright Act is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
"To the public" generally means to persons under no explicit or implicit restrictions with respect to disclosure. The following acts do not constitute publication: performing the work, preparing copies or phonorecords, or sending the work to the Copyright Office.

>>the following deals with the definition of "work for hire"

The author of a sound recording is the performer(s) or record producer or both. If the work is "made for hire" as defined below, the employer is considered to be the author and should be named in Space 2. A "work made for hire" is:
1)a work prepared by an employee within the scope of his or her employment, or
2)a work of a type specified in the law which has been specially ordered or commissioned, where there is an express written agreement signed by both parties that the work shall be considered a "work made for hire."
Generally speaking, for a new sound recording to be a work made for hire, it must be made by an employee within his or her scope of employment.



the lawyers response(after I explained what a "taper" is):
A "taper" can copyright a recording they have made provided that:
1) It is a work for hire and there is a written contract authorizing the "taper" to do so, or
2) The work being recorded was not copyrighted beforehand; ie, a nature recording or a work sourced (authored) in the public domain.
In addition to point 1, the contract would need approval of the original copyright holder (the author), the performer/management involved, the record label (if any, of the performer and/or the orginal copyright holder if a "cover" is involved) and the venue/performance space where the recording was made.
If neither of the 2 exemptions are present, then the "taper" has no legal rights other than fair-use to said recording of the performance, provided the performer has authorized the "taper" to record for fair-use.

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Poster: Tribe Date: Oct 21, 2003 11:26am
Forum: etree Subject: Re: clearing the mis-information on taper rights

Thank you for bringing some lucid reasoning to this discussion. It seems that some of the tapers are claiming rights that are far beyond the limited license that was granted them in the first place.

Tribe

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Poster: thoman8r Date: Oct 21, 2003 9:56am
Forum: etree Subject: Re: clearing the mis-information on taper rights

>>the following deals with the definition of "work for hire"

The author of a sound recording is the performer(s) or record producer or both. If the work is "made for hire" as defined below, the employer is considered to be the author and should be named in Space 2. A "work made for hire" is:
1)a work prepared by an employee within the scope of his or her employment, or
2)a work of a type specified in the law which has been specially ordered or commissioned, where there is an express written agreement signed by both parties that the work shall be considered a "work made for hire."
Generally speaking, for a new sound recording to be a work made for hire, it must be made by an employee within his or her scope of employment.


I believe the work for hire clause is being taken out of context. If you read it carefully, you will see that this deals with the artists or record company (the employers) retaining the rights over the hired recorder, the producer (the employee). It is not saying that a person recording never has rights over the recording, only in a work for hire situation like the one above. This does not apply to authorized taping of shows, there is no work for hire here.

the lawyers response(after I explained what a "taper" is):
A "taper" can copyright a recording they have made provided that:
1) It is a work for hire and there is a written contract authorizing the "taper" to do so, or
2) The work being recorded was not copyrighted beforehand; ie, a nature recording or a work sourced (authored) in the public domain.


So you had to tell him what a taper is and now you are taking his word as law? Sorry, not buying it. I still want evidence - a legal document, not some lawyer's off the cuff remark, especially when it flies in the face of the U.S. Copyright office's own documentation.

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Poster: cortex Date: Oct 21, 2003 10:46am
Forum: etree Subject: Re: clearing the mis-information on taper rights

wow, you are assuming that everyone knows what a "taper" is?
I never said that what the lawyer said was fact, it isnt. only a judge could do that.

yeah, a armchair quaterback knows what is going on moreso than the actual playing quaterback. . .

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Poster: thoman8r Date: Oct 21, 2003 12:19pm
Forum: etree Subject: Re: clearing the mis-information on taper rights

I never said that what the lawyer said was fact, it isnt. only a judge could do that.

No you just claimed to be "clearing the mis-information on taper rights". Now you're back tracking and saying you don't know if what this lawyer is saying is right. You can't have it both ways. All I'm asking for is some proof. If you can show me something concrete that contradicts what I found on the U.S. Copyright Office's website, I'd like to see it. Really.

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Poster: cortex Date: Oct 21, 2003 10:46pm
Forum: etree Subject: Re: clearing the mis-information on taper rights

the only facts would be if such a situation ever came up before the courts before and our lawyer didnt check into previous case logs as there was no pertinent lawsuit for him to represent.

"clearing some mis-information" doesnt mean that everything said is fact.
no "back-tracking" involved.

the work for hire section was not used out of context. the lawyer read the ENTIRE page of the copyright and he highlighted those 2 sections as that is what is pertinent to "tapers" and he then explained how those sections apply to "tapers".

yes, lawyers interpret laws differently from other lawyers, same as judges, etc...
that is why there are court cases.

are you a lawyer?
do you have legal training in copyright/IP issues?
I am not, but I also dont willy-nilly throw around legalese, I consult with a lawyer to do my legal thinking for me.

you may "own" the physical media the recording was originally reocrded on(if you were the actual taper), but you dont "own" or can claim rights to the performance or recording unless you fall into 1 of the 2 exemptions stated

This post was modified by cortex on 2003-10-22 05:46:42

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Poster: Tribe Date: Oct 21, 2003 11:28am
Forum: etree Subject: Re: clearing the mis-information on taper rights

Again, you never presented any "evidence" whatsoever. The only thing that compels anyone who downloads tapes recordings you have posted is the good-will of the downloader to respect your wishes. I, for one, do tend to respect the reasonable desires of the posters. Not because I have any legal obligation to do so, but because since they went through the time and effort to record, encode and post, I think it's only good manners.

However, any ridiculous limitations made by a poster, which I have yet to find one, would be happily ignored on my part.

Tribe

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Poster: chuckhatfield Date: Oct 22, 2003 12:48am
Forum: etree Subject: Re: clearing the mis-information on taper rights

Ok, i am a taper, a lawyer, and I've actually handled some (but admittedly not much) copyright litigation.

It is important to remember that there are two possible copyrights at work here, the copyright of the music being played and the copyright of the recording. Obviously, no taper can expect to get a copyright of the music being played. However, what the original post in this thread lays out is the means by which a copyright in the recording can be had. Though the copyright attaches automatically to the recorded product, the copyright is only created by statute and thus must meet the statutory requirements for a valid copyright. The copyright act, as described above, only creates copyright for the recordist when 1) the recordist is under a written contract to record the copyrighted work by copyright holder (here, phish or whoever your band is) thus creating a "work for hire" or 2) the recordist is recording a work not previously copyrighted. In our case, the work is copyrighted and we are given a limited license to infringe on the copyright by being permitted to tape. a legal license is fully revocable at any time and it may be given with specific conditions. Here, those conditions are not to sell the recordings, and in some examples (such as ABB) not to distribute electronically. So the work we are recording remains specifically copyrighted. Therefore, because any legal copyright basis to the recordings must be based on a statutory grant of a copyright, absent meeting those provisions, the tapers do not have any legal copyrights in their recordings.

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Poster: Tribe Date: Oct 22, 2003 2:59am
Forum: etree Subject: Re: clearing the mis-information on taper rights

" Ok, i am a taper, a lawyer, and I've actually handled some (but admittedly not much) copyright litigation."

Great summary. [possible others-baiting part trimmed to keep it real cool- mod.]

Tribe

This post was modified by hamilton on 2003-10-22 09:59:42

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Poster: Administrator, Curator, or StaffDiana Hamilton Date: Oct 22, 2003 1:39am
Forum: etree Subject: Re: clarification of taper rights

Wow, thanks for the great run-down for a regular person like me. :)

Here is an illustration of a taper who has copyrighted a series of nature sounds (fits for case 2). (BTW it's also a handy illustration of the Creative Commons license.)

Nature Letter A

This post was modified by hamilton on 2003-10-22 08:39:20

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Poster: Erich Date: Oct 22, 2003 5:40am
Forum: etree Subject: Re: clearing the mis-information on taper rights

Thanks for clearing that one up. Its nice to know that my opinion is looked down upon but to a pretty big extent correct.

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Poster: cortex Date: Oct 22, 2003 1:03am
Forum: etree Subject: Re: clearing the mis-information on taper rights

thank you.

I had asked our lawyer to try explain it in laymen terms, but you may have done better.

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Poster: thoman8r Date: Oct 22, 2003 5:36am
Forum: etree Subject: Re: clearing the mis-information on taper rights

Thanks for clearing that up. It's nice to hear some first hand knowledge on the subject. I can see now that there was more to it than there seemed at first, and now that I've finally gotten what I asked for all along - something of substance and not just conjecture - I'll let this topic drop. I'm really glad this has been cleared up. I'll go back to my original point - which is to just show the tapers some respect.

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Poster: Erich Date: Oct 22, 2003 5:46am
Forum: etree Subject: Re: clearing the mis-information on taper rights

just wanted to say you put up a good debate, and you didnt sink to a low level trying to make your points. cheers :)

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